No conspiracy in Libby, despite hundreds of deaths

Maybe it's more incompetence by U.S. Department of Justice prosecutors -- kind of a holdover from the Bush era.

Maybe it's because a criminal conspiracy charge is always difficult to prove.

Or maybe it's a form of justice.

A jury in Missoula, Montana, just decided that the W.R. Grace corporation and some former Grace executives are not guilty of criminal conspiracy charges in connection with the deaths of hundreds of people -- and the illnesses of more -- in the small mining town of Libby.

The verdict shocked the surviving victims and kin of those who died from exposure to the corporation's asbestos mining. Gayla Benefield, who lost family and friends to lung disease and suffers effects herself, tells the Associated Press: "They have gotten away with murder. That's all I can say."

The New York Times reports: "The verdict was a repudiation of the federal
government’s case, which portrayed Grace as a greedy mine operator, aware of
the dangers created by its mining operations and then callously, criminally
covering up its crime."

Judge Donald Molloy, who was appointed by President Bill Clinton and tends to rule for environmental claims, nevertheless slammed prosecutors during the trial -- as all the stories report, including an AP analysis headlined:"Prosecutors struggled in Grace trial."

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I disagree with your casting sole blame on the enviros for doing nothing. This issue is just as much a human rights issue as it is an enviro issue. Why didn't you blast all the human rights groups in the state instead of targeting groups that don't tend to focus on people. Are you upset because there are groups that focus on natural resources issues instead of human rights issues? The one sentence cheap shot totally lacks analysis. I guess that is why this is a blog.

a researched opinion

Ray Ring

May 09, 2009 04:08 PM

Hi John -- I'm not making a snap judgment. If you follow the links in this blog post, you would find my 2005 High Country News cover story headlined, "Where were environmentalists when Libby needed them the most?" I did a fair amount of research for the story. To make it easy, here's the link to it -- http://www.hcn.org/issues/292/15290 ...

Outdated and Mainly Irrelevant

John

May 10, 2009 10:54 AM

Ray,

The headline of your article is “No Conspiracy in Libby, Despite Hundreds of Deaths.” While most of the blog speaks to the criminal law suit, you devoted the last few lines to a topic that ostensibly has nothing to do with criminal charges.

The last line says: “environmental groups mostly continue to ignore this environmental crime because the victims are people, instead of ecosystems.” The fact that some people focus on natural resources is a topic completely separate from criminal charges. Conflating the two issues in the last lines of a post seems inappropriate. What exactly should environmentalists do to influence a criminal case?

It isn’t as easy as saying enviros are only interested in ecosystems. Here are some admittedly cherry-picked quotes from the blog you directed me to:

“In fact, environmentalists have repeatedly tried to reach
across the divide, and have mostly been rejected.”

“[I]t’s real easy just to blame the environmentalists," says
Eileen Carney, a teacher who represented Libby in the Montana
House of Representatives from 2000 to 2004. "Then you don’t
have to think anymore."

The article you wrote about environmentalists (or lackthereof) in Libby needs to be rethought in light of the economic meltdown. I agree that the left has begun to focus on very narrow issues, sometimes to the detriment of other issues. Nonetheless, this specific focus on issues is the result of increased competition for a substantial decrease in the amount of money available. Essentially, you have to become a specialist if you want to get any money from funders or the general public. With the economy this poor, asking groups to change their focus to something they have no experience in is simply unrealistic.

Characterizing this as an environmental claim is erroneous. It is a criminal claim arising from an environmental statute. Moreover, Judge Molloy does not tend to rule in favor of environmental claims. I'd like to think he is objective, but if I had to put him in a box I would say he has ruled against more enviro claims than he has ruled in favor of. Shall we update your old statistics?

Guess we just disagree

Ray Ring

May 10, 2009 11:45 AM

Human rights groups didn't push the 1970s laws against pollution -- environmental groups did. And back then, they often based their arguments on casting people as pollution victims (Love Canal, Three Mile Island etc).

Yes, my 2005 cover story (which was not a blog) reported, environmental groups mostly didn't link up with the Libby victims for a mix of reasons that include, the few who tried found it difficult because of the cultural divide.

But environmental groups have put more effort into bridging the divide elsewhere, where it suits their goals.

Yes, Judge Molloy has grown tired of cases filed by the green lawsuit shops in Missoula in recent years.

But he's still a go-to judge for environmentalist lawyers -- they generally try to place cases in his courtroom rather than in other federal courtrooms in the region.

I'm not alone in my thinking. Some environmentalists and other political thinkers see the same problem I see (some of their quotes are in the cover story).

Enough said.

Tom Power blasts Judge Molloy

Dave Genter

May 12, 2009 04:26 PM

Ray - Tom Power had a lengthy commentary (diatribe?) on KUFM yesterday regarding the case and the surprising outcome. Power was very damning of Judge Molloy and his anti-government bias. He makes some very strong, and I think defensible, points that suggest Molloy and his harsh treatment of the prosecution's case essentially undermined and weakened the government's case so badly that the jury found Grace not guilty with nominal deliberation (meaning that most likely had their minds made up earlier in the trial). You may be able to get his commentary off the KUFM web site. Worth a look for anyone following this trial.

In some ways, Judge Molloy’s hostility to the federal government’s prosecution of W.R. Grace and Company was not shocking. Most of the federal environmental cases that were brought to him and on which he often sided with environmental organizations, were brought against federal agencies whose sloppy and politically-influenced decision-making offended him. His past rulings could be seen as anti-government, especially anti-federal government, rather than pro-environment. In that, he may be simply being true to his Montana roots: He is a Butte boy, educated in Montana schools, who, except for his military service, has spent his entire life in the state. Montana, like much of the rest of the West, has a long tradition of resisting and bad-mouthing federal authority. To get elected and stay elected in statewide offices in Montana, one has to adopt a vocal anti-federal-government pose.

Meanwhile, another observer, journalist Andrea Peacock, takes an even tougher view -- http://www.counterpunch.org/peacock05112009.html -- under the headline: "Corporate Poisoners Walk in Sickening Verdict." I'll close this comment with excerpts from Andrea Peacock:

The government’s case walked a razor’s edge of dates and crimes. The Clean Air Act provisions Grace was accused of violating didn’t exist until 1990, the year the mine closed. Furthermore, the five-year statute of limitations began running at the end of 1999, when a newspaper series brought the tragedy in Libby to light. Since charges weren’t brought until 2004, that left a very thin sliver of time in which to find evidence of wrongdoing.

... (Yet) when W.R. Grace executives closed the Libby mine in 1990 and split town, they did so knowing that the high school and middle school running tracks had been paved with mine tailings; that the Plummer Elementary School ice skating rink was constructed with its ore; that the former screening plant sold to a local family, the Parkers, for their nursery and storage businesses was blanketed with asbestos-contaminated vermiculite; that the export plant it donated to the town—which was subsequently leased for a family-run retail lumber and planing business—was also chock full of the stuff.

... (Defense lawyers cited) evidence that the State of Montana and EPA knew enough of what was happening in Libby, they should have been all over that town 30 years ago. There is blame to share, and while that does not release Grace and these men from their responsibilities, it is utterly true.

... Judge Molloy kept out as best he could any evidence that humanized the victims in Libby: there was to be little talk of children’s exposure, no description of how it is to die from the slow suffocation of asbestosis, nothing that brought to life the cases of “occupational exposures,” the workers and their family members who were killed. Internal Grace memos that debated things like the cost of showers and uniforms for its workers were redacted or omitted all together. In one order, Molloy disallowed the use of 47 out of 54 of the government’s proposed exhibits, many on the grounds that they would be prejudicial—that is, their potential emotional impact outweighed their evidentiary value.

... Furthermore, Molloy allowed the tenor of the case to be debased: defense attorneys mocked their opponents outright, and calling the government’s attorneys and witnesses alike liars (including a particularly merciless attack by ... attorney Thomas Frongillo on the character of nursery owner Mel Parker, who if defense lawyers were to be believed, cared about having waterfront property more than he cared about his family’s health).

... There’s still the possibility of state charges on homicide.

... It remains the responsibility of the Montana Attorney General.

Montana law allows that “A person commits the offense of negligent homicide if the person negligently causes the death of another human being.”

As of early 2007, there were 274 people on Libby’s self-kept scorecard of asbestos casualties—this includes 33 cases of mesothelioma identified by the Agency for Toxic Substances and Disease Registry (mesothelioma is a rare lung cancer associated exclusively with asbestos exposure), as well as miners, miners’ wives, miners;’ children, and scores of people who had no connection to the mine at all—they simply lived in Libby. Given the latency period of asbestos related diseases—which can stretch for as long as 40 years—the community will likely be burying people whose lives were shortened by the contamination Grace left lying around town well into the middle of this century.

Just because the rest of us are tired of the tragedy is no excuse: There are an awful lot of people still waiting for judgment day.

Thanks for posting Power and Peacock

Dave G.

May 13, 2009 02:11 PM

Amen to the Peacock commentary. Thanks for posting both of these Ray. I just saw a piece in the New West Bozeman issue on your reporting. Apparently your comments on the environmental community turning its back on this case and the people of Libby has hit a nerve (no surprise that it was from Bozeman).
http://www.newwest.net/[…]/L396

The tragedy here is of the people in Libby with this toxic and lethal legacy, and still no justice. We are all to blame in some way, especially if Grace gets away with this and we continue to let corporate interests run over communities like Libby.

U.S. Prosecutors have record of incompetence

Hank Plummer

May 13, 2009 05:18 PM

Dr. Tom Power -- Don Molloy has family roots in Butte, but he attended high school in Malta and was a Naval fighter pilot. He also represented in private practice both big medical establishements, as well as plaintiffs who were harmed by enviro. negligence. Based on my own observations of past performances, the tragic Libby victims may have been shortchanged by U.S. Justice Dept. incompetence that we widely saw during the Bush Admin. and which carried into this case. For instance, in the spring of 2004, a Boise federal court jury of Spud State citizens, did not buy the USA "terrorism" case brought against a University of Idaho graduate computer-science student (from Saudi Arabia) for his alleged complicity just because he was webmaster for a Muslim charity website based in Michigan. The feds spent probably millions on evidence gathering, subpoenas of emails, and "expert" witnesses, all to no avail. The Idaho citizens on the jury didn't buy it, and he was exonerated and released after spending months in jail -- held without bond. But the case pretty much ruined Sami's fondness for the USA, his reputation and academic momentum, and he returned to Saudi Arabia to join his wife and small children -- all of whom had been terrorized by fed and local law enforcement during the early-morning raid on UI student housing in Moscow. His defense lawyer had successfully represented the family of Ruby Ridge figure Randy Weaver in their civil case against the feds.

The people of Libby still have civil actions pending, and you can wish them well, but a criminal conviction against W.R. Grace would have probably helped them greatly.

Also, right after the Seattle P.I.'s Libby expose broke, and the first "town meeting" was held in Libby for victims and their families to share their cases and outrage, seek official help and ask questions, where was Gov. Marc Racicot, who grew up in Libby? He was in New Hampshire helping GW Bush campaign in the presidential primary. But hey, that's another crime............

About Ray

Ray has been a Western journalist since 1979. He's now High Country News senior editor, based in Bozeman, Montana. He's earned national recognition including a George Polk Award for political reporting, a Sidney Hillman Foundation Journalism Award for investigating oil-field accidents, and an Investigative Reporters & Editors scroll for going undercover as a prison inmate. He's had three novels published.